Mr. Nicholas gave a lengthy defense that covers 13 pages of Elliot’s Debates.

Henry was “extremely uneasy at the proposed changes of government.” He fears that such a drastic change from a Confederation to a Consolidated arrangement puts the liberty of the states in danger. Henry discusses the Preamble and asks where did the delegates get the right to use “We the People” instead of “We the States.”

Governor Randolph explains why he didn’t sign the Constitution in Philadelphia, but suggests that a vote against the adoption of the Constitution, especially since 8 other states have adopted the Constitution, is a vote for disunion. He favors adoption with amendments. He disagrees with Henry and defends the right of the delegates to take action for the preservation of the Union, “the anchor of our political salvation.”

George Mason notes that the legislative power to tax shows “clearly that it is a national government, and no longer a Confederation.” He says the number of representatives will be too few to represent the interests of the people and it is impossible that “one general national government can exist in so extensive a country.” He calls for amendments “to secure the dearest rights of the people.”

James Madison suggested that a discussion on the power of Congress to tax be postponed until later since that power is in Article I, Section 8, and the issue at hand dealt with taxation and representation. He also denied that the Constitution favored consolidation and defended the size of the House of Representatives.

Contra Henry, Pendleton defends the “We the People,” expression, and argues that the previous Confederation was “totally inadequate,” that “the spirit of America” is better served by the proposed plan and defends the power of Congress to directly tax as well as the number of representatives proposed for the House.

Henry, in a speech that covers over twenty pages of Elliot’s Debates, asks “Where is the danger?” Why are we being terrified “into an adoption of this new form of government?”

Henry lays out his concerns: 1) the Preamble is ordained by “We the People,” and not “We the States,” 2) the Constitution departs too far from the Articles of Confederation, 3) representation in the House is inadequate, 4) the rights of the people are not properly protected by a bill of rights from “the commands of tyrants” and “disciplined armies,” 5) the amendment process in Article V is flawed since it requires more than a majority to amend, 6) Article I, Section 8 supports a standing army and unlimited taxation, 7) the delegates in Philadelphia exceeded their authority, 8) the people of Virginia are unable to change their form of government, 9) there is “the probability of the President’s enslaving America,” and 10) there is “no true responsibility” in the Constitution, specially since Congress will probably fix the elections.

[The Convention Recorder expresses his frustration: “Mr. HENRY strongly expatiated on the probability of the President’s enslaving America, and the horrid consequences that must result.”]

Randolph: “if we go on in this irregular manner, contrary to our resolution, instead of three or six weeks, it will take us six months to decide this question.”

Randolph, contra Henry and Mason, in a speech that covers over twenty pages of Elliot’s Debates, states that as “a child of the revolution,” he will vote for the adoption of the Constitution. Why? Because 1) it secures the principles of the revolution, 2) the dangers to individual liberty are not false, 3) it will invigorate commerce, 4) “the Union will be lost by our rejection,” 5) “a national government is absolutely indispensable,” 6) the Articles of Confederation are inadequate to “make us happy or respectable,” and beyond correction, 7) Virginia too will be more safe and secure, 8) “I wish my country not to be contemptible in the eyes of foreign nations,” 9) republican government is practicable in “an extensive territory,” and 10) “if the Union be now lost, I fear it will be so for ever.”

Madison, in a speech that takes up nearly twenty pages of Elliot’s Debates, also attempts to refute Henry. He urged that the delegates focus on the merits of the Constitution and avoid “general assertions of danger, without examination.” Madison argued that 1) majority faction is the mortal disease of republican government, 2) Henry is wrong: the people do not now live “in perfect tranquility and safety,” 3) Henry is inconsistent in bemoaning that it takes as little as 3/4 of the states to ratify the Constitution and as many as 3/4 of the states to amend it, 4) Henry is wrong about several clauses including the exclusive legislation clause, the militia and army clause, and he is wrong about 5) the positive impact of Virginia not joining the Union. 6) Madison, reiterating the arguments of Federalist 39, declares the Constitution “is not completely consolidated, nor is it entirely federal.” Henry is wrong again: the Constitution is “of a mixed nature.” 7) And Henry is wrong to “satirize the powers given to the general government.” 8) The power of direct taxation is necessary “for the preservation of the Union.” 9) Henry is also wrong that the general government will “absorb the state governments.” Finally, 10) representation in the House is fine.

Nicholas ends the day’s debate by saying that he too will stray from the resolution “of going regularly through the system, clause by clause,” and also refute “the principle parts of the argument” made by Henry.

Mr. Corbin weighs in on Patrick Henry; his remarks cover ten pages of Elliot’s Debates and repeat what has been previously said. He adds a twist to Madison‘s claim that the government is neither federal nor consolidated; it is, says Corbin, “a representative federal republic.”

Randolph responds to both Henry and Mason. He focuses on “the powers necessary to be given to the general government” in the next fifteen pages of Elliot’s Debates. “Money is the nervethe life and soul of a government,” and so the Congressional power of imposing direct taxes, as an alternative to requisitions, is necessary and proper for the new government to survive and succeed. And the number of representatives is “numerous enough to be well acquainted with the interest of the people.”

Madison stated in an extensive speech that the part of the Constitution “which gives the general government the power of laying and collecting taxes [is] indispensable, and essential to the existence of any efficient or well-organized system of government.” Observe the record, consult experience, and listen to the “great name” who declared, “that the Articles of Confederation were inadequate” to secure freedom and happiness.

Henry now had the floor for the remainder of the day; his speech covers 14 pages of Elliot’s Debates. We are being asked to adopt, he said, “maxims which tend to the prostration of republicanism.” He proceeds to challenge the arguments advanced by Randolph with the refrain, “where is the danger?” If there any, then they are located in the implied powers bestowed on the general government and not in the imaginary dangers feigned by the proponents of the Constitution. He “declared a bill of rights indispensably necessary.”

Henry resumes his argument against ratification now, one that covers roughly twenty-five pages of Elliot’s Debates. He rejects the “absurd” and “lunatic” compromise proposal that we “adopt first, and then amend.” He repeats his distinction between the real dangers of adopting the Constitution with its implied powers”so new, it wants a name”and the imaginary dangers concocted by Randolph et al about life under the Articles of Confederation. In fact, “the system of laws under which we have lived has been tried and found to suit our genius.”

Henry continues: Randolph is “inconsistent.” He refused to sign this Constitution because it endorses “one power to reign over America with a strong hand,” and now endorses that very Constitution. In addition to proposing one government over such an extensive territory, the plan of government contains “only ideal balances. Till I am convinced that there are actual efficient checks, I will not give my assent to its establishment.”

[Toward the end of his speech, the Convention Recorder notes that “Mr. Henry then, in a very animated manner, expatiated on the evil and pernicious tendency of keeping secret the common proceedings of government.”]

Henry takes random shots at other parts of Article I of the Constitution including “the curious anatomical description” that “it is national in this part, and federal in that part.” Actually, says Henry, the Constitution, unambiguously, “is a great consolidation of government.”

Mr. Lee {of Westmoreland}, in a speech that covers ten pages of Elliot’s Debates, criticizes Henry for discarding the agreed upon coverage of the Constitution “in a systematic manner.” He responds to “those bolts which he has so peculiar a dexterity at discharging” and declares that under the Constitution, “the liberties of the people are secure.”

Randolph concludes the day with a speech that covers eight pages of Elliot’s Debates. He responds to Henry‘s “aspersions and his insinuations” of personal “inconsistency.”

[The Convention Recorder indicates that Randolph read his “public letter” where he tells his constituents that he has objections but will support ratification, and demanded, and received, a “concession” from Henry. Had he not, says Randolph, “he would have made some men’s hair stand on end, by the disclosure of certain facts.”]

Randolph‘s point is that he still has reservations about the Constitution, but the issue now, given the adoption by eight states, was union or disunion. He favored union. Randolph proceeds to attack Henry‘s “lapses” in history and theory, especially the premise that “maxims alone can save nations; that our maxims are our bill of rights.”

Randolph resumes his discussion and promises soon to “go on in regular order” and “not forever wander from the point.” He imitates Henry‘s digressions and his wandering commentary covers fourteen pages of Elliot’s Debates. For example, he examines the powers bestowed on Congress and declares the liberties of the people to be safe. Even the “sweeping clause,” also known as the necessary and proper clause is not to be dreaded. His point is that the issue is that a vote against the Constitution is a vote for disunion. And, he says, Jefferson would agree with him that while there are imperfections in the Constitution, for example in the Judiciary, “the object which guides me” is “the Union.”

James Monroe expresses his “anxiety” over the adoption of the general government. His discourse covers sixteen pages of Elliot’s Debates and includes reflections on the history of confederacies in general and America in particular.

[The Convention Recorder tells us that Monroe “read several passages in Polybius.”]

He finds the Articles of Confederation to be defective in both form and power. Nevertheless, the Constitution goes too far. The state governments will not be able to protect themselves, it is unwise to grant Congress the power of direct taxation, it is impracticable to have a “law that can be uniform throughout the United States,” and there are no genuine checks and balances within the general government or genuine limits on the powers of that government. Thus we need a bill of rights, “the polar star and great friend of American liberty” to protect our rights against such “a dangerous government.”

John Marshall argues in favor of the adoption of the Constitution: Contra Henry and Monroe, “the friends of liberty,” and “a well-regulated democracy” can embrace the maxims undergirding this Constitution. In particular, it is necessary to bestow on Congress the power of direct taxation and that power is sufficiently “guarded.” His remarks cover fourteen pages of Elliot’s Debates.

Harrison urged rejection of the Constitution because it would endanger “the rights and liberties of the people.”

Nicholas, in a speech that covers ten pages of Elliot’s Debates, concludes the day’s discussion. He lamented: “Although we have sat eight days, so little has been done, that we have hardly begun to discuss the question regularly. The rule of the house to proceed clause by clause has been violated.” He then attacks Henry‘s various arguments, including his defense of requisitions over direct taxation, his critique of the “sweepings clause,” and the demand for a bill of rights. He is also concerned that Henry wants union on his own terms or he will “recur to partial confederacies. He will attempt amendments. If he cannot obtain them, then he will go choose a partial confederacy.”

Madison, in a speech that covers fifteen pages of Elliot’s Debates, attempts to stop the digression. “Come to the point,” he says, and discuss the Constitution clause by clause, rather than “very irregularly” as Henry has done. And, to the point, he defends the Congressional power of direct taxation. Recalling his argument in Federalist 44 and 45, Madison says: “the powers of the general government relate to external objects, and are but few. But the powers in the states relate to those great objects which immediately concern the prosperity of the people.” So what is Henry fussing about?

Madison, again, insisted on ” a regular progressive discussion, than by that unconnected, irregular method which they had hitherto pursued.”

Mason, in a speech that covers ten pages of Elliot’s Debates, says that “it is impossible, in the nature of things, to avoid arguing more at large than is usual.” Accordingly, he moves beyond the specific clauses under consideration and expresses his concerns about the supremacy clause in Article VI, and the “evil” and “nefarious” importation of slaves clause of Article I, Section 9. Surprisingly, however, he says “there ought to be a clause in the Constitution to secure us that property!” As far as Randolph‘s “phantoms” and “exorcisms” are concerned, “I know that he once saw as great danger in it as I do. What has happened since to alter his opinion? If anything, I know it not.” What we need are amendments that clearly note that the powers not granted to the general government are reserved to the states.

[At three points during Mason‘s speech, the Convention Recorder made italicized summaries.]

Mr. Lee (of Westmorland) urged that “the committee proceed regularly.” He made “jocose observations and satirical allusions” with respect to remarks by the opposition to the adoption of the Constitution.

Grayson, in a speech that covers ten pages of Elliot’s Debates, argues against direct taxation: “give up this, and you give up everything, as it is the highest act of sovereignty.” He was particularly critical of the remarks made by Randolph and Pendleton.

Grayson, despite Madison‘s insistence “on going through the business regularly, according to the resolution of the house,” resumes his discussion of the previous day. This occupies another ten pages of Elliot’s Debates. He is particularly concerned that Madison “asserted yesterday that there were two opinions in the worldthe one that mankind were capable of governing themselves, the other that it required actual force to govern them.” He fears that the Constitution presumes the latter. Thus, the states should never give up the power of taxation. Instead, we should rely on requisitions.

Pendleton, in a speech that covers twelve pages of Elliot’s Debates, says: “On the subject of government, the worthy member (Mr. Henry) and I differ at the threshold. I think government necessary to protect liberty. He supposes the American spirit sufficient for the purpose.” Pendleton is also concerned that the opposition is challenging the principle that the Constitution is a “friend to the equal liberty of all men.” Pendleton, finally, turns to “the great object of direct taxation, more immediately under consideration.” The clause should be adopted. In conclusion, he suggests that Jefferson’s correspondence from France indicates he is in favor of ratifying the Constitution and seeking subsequent amendments.

[The Convention Recorder notes: “Pendleton added several other observations, but spoke too low to be heard.]

Madison responds to Grayson‘s claim that by “giving up the power of taxation, we should give up everything,” in a speech that covers eight pages of Elliot’s Debates. He defends the shift from requisitions to direct taxation.

Henry, in a speech covering fifteen pages of Elliot’s Debates, opens thus: “once more I find it necessary to trespass on your patience.” He refers to Jefferson’s letter quoted earlier: he wanted nine states to adopt and four states to reject in order to justify the need for “amendments and a bill of rights.” If we follow Jefferson, ” we amuse ourselves with the shadow, while the substance is given away.” We need to reject the Constitution right now. Where is the protection in the Constitution for 1) our religious liberty, 2) the retention of our slaves, 3) the powers of the state governments, 4) the judicial restraint of powers, 5) the adequate representation of the people?

Madison, in a concluding speech, says: “I am sorry to follow the example of gentlemen in deviating from the rule of the house. But as they have taken the utmost latitude in their objections, it is necessary that those who favor the government should answer them.” Contra Henry, and all his “desultory objections,” that “there is no bill of rights declaring that religion should be secure: freedom of religion is protected by the “multiplicity of sects which pervades America.” And with respect to Jefferson: “I believe that, were that gentleman on the floor he would be for the adoption of this Constitution. But, whatever be the opinion of that illustrious citizen, considerations of personal delicacy should dissuade us from introducing it here.”

[According to the Convention Recorder, Madison “spoke so very low, that his meaning could not be comprehended.”]

Mason is also concerned about the “organizing, arming, and disciplinig the Militia” clause, and Madison, again, defends the clause.

Corbin and Grayson offer different interpretations of the republican guarantee clause in Article IV.

John Marshall defends the clause by explaining that the states have not given up any power of their own militia: Congress has not been given that power and the states, according to Article I, Section 10, have not been restricted in this area. The militia power is “concurrent.”

Henry still believes that the states would have no right to call a militia to suppress insurrections under Article I, Section 8, pointing out a potential conflict if Virginia and the national government were to call the militia at the same time. He is suspicious of the “concurrent” powers interpretation.

Madison defends the plain meaning of the language in both the federal and state militia power Article I, Section 8 and Article IV, Section 4. “If we object to the Constitution in this manner, and consume our time in verbal criticism, we shall never put an end to the business.”

Mason believes the federal right to discipline the militia will be abused. He also believes Article I, Section 8 gives Congress the power to legislate anything, and was very concerned about the “exclusive power to legislate within ten miles square.”

Grayson argues that “the government will operate like a screw.” He sees Article IV, Section 2, “fugitive slave clause,” as unenforceable in the ten miles square.

Nicholas and Lee defend the ten miles square clause.

Henry argues that the ten miles square clause will be empowered by the power granted in the “sweeping,” or “necessary and proper” clause in Article I, Section 8. Together, Congress has “power to do every thing .If you grant them these powers, you destroy every degree of responsibility.”

Madison argues that the “necessary and proper” clause “gives no supplementary power. It only enables them to exercise the delegated powers.” It is not “within the limits of human capacity” to delineate “all those particular cases and circumstances in which legislation buy the general government would be necessary, and leave to the states all the other powers The particular powers which are found necessary to be given are therefore delegated generally, and particular and minute specification are left to the legislature.” Madison,

[According to the Convention Recorder: “Here Mr. Madison spoke of the distinction between regulation of police and legislation, but so low he could not be heard.”]

Mason fears that the Constitution does not specify that the powers not listed be reserved to the states. He is concerned about the necessary and proper, or “sweeping” clause. He “still thought that here ought to be some express declaration in the Constitution, asserting that rights not given to the general government were reserved to the states.” Without a bill of rights, “implication might swallow up all our rights.”

Henry moved to read “from the 8th to the 13th article of the declaration of rights; which was done.”

George Nicholas claims that if Congress exceed their powers, “the judiciary will declare it void, or else the people have a right to declare it void.” And “why were the articles of the bill of rights read? Let him (Henry) show us that those rights are given up by the Constitution.”

Henry: “the necessity of a bill of rights appears to me to be greater in this government than ever it was in any government before.” A bill of rights tells us “that our rights are reserved.” He is suspicious of t he doctrine of implication.

Grayson thought “there ought to be a bill of rights” because it is “questionable whether rights not given up were reserved.”

Nicholas urged adoption of the Constitution now, leaving the way open for subsequent amendments.

Mason believes this is “a fatal section.” The “disgraceful” slave trade is morally “evil” and should be struck down. On the other hand, there no security in “the property of the slaves we have already.”

Madison explains why the “temporary permission of that trade” was necessary for the Union: “The gentlemen from South Carolina and Georgia” demanded it. And “great as the evil is, a dismemberment of t he Union would be worse.” Besides, Congress can ban it in twenty years. The Fugitive Slave Clause enables “owners of slaves to reclaim them.”

Tyler threatens to vote against the Constitution if this section is not removed; he “warmly enlarged on the impolicy, iniquity, and disgracefulness of this wicked traffic.” And he used this temporary ban on Congress in Section 9 as proof that the powers of Congress in Section 8 are in fact sweeping and thus the need for a bill of rights.

Henry, like Tyler says “the insertion of these restrictions on Congress was a plain demonstration that Congress could exercise powers by implication.” The discussion shows, he adds, the need for a reserved powers clause.

George Nicholas defends the slave trade clause. Although the Constitution tolerated “a temporary inconvenience,” it 1) put an end to the slave trade in 1808, and 2) secured the union.

Henry notes that here in the Constitution is a partial bill of rights! But they are “feeble and few.” He concludes: “My mind will not be quieted till I see something substantial come forth in the shape of a bill of rights.”

Randolph, in a speech that covers nine pages of Elliot’s Debates, repeats his position: he supports the Constitution, “not because I considered it without blemish, but because the critical situation of our country demanded it.” We are approaching anarchy. He suggests that the true meaning of the sweeping clause is somewhere between the restrictive explanations given by Madison and the expansive reading given by Mason. Let’s pass the Constitution and remove the “ambiguities” of the sweeping clause via amendment.

Mason objects to the re-eligibility of the President. “Mr. Chairman, there is not a more important article in the Constitution than this. The great fundamental principle of responsibility in republicanism is here sapped. The President is elected without rotation.” Moreover, “the Vice President appears to me to be not only an unnecessary but dangerous officer.”

Randolph admits that he was wrong in originally opposing the re-eligibility of the President.

Madison defends the position of Vice President: it “keeps the government in motion, and is well guarded.”

Monroe is concerned that 1) the Electoral College bestows the election of the President on “the majority pf the states” and not the majority of the people, and 2) “the Vice President is an unnecessary officer.”

Grayson was also concerned about the Electoral College: “it seems to be founded on accident than any principle of government.” Mason concurred: the election would land up in the Congress where the small states would prevail.

Madison: every possible mode of electing the President contains “inconveniences.” So we had to find a compromise. But given the “great diversity of interests” in “so extensive a country” as is America, 1) the people electing electors who 2) are state based is the most “judicious” and “proper” mode.

Mason is concerned about the potential abuse of the “Commander in Chief” and power to pardon clauses, as well as the absence of an executive council to restrain the President.

Mason, Henry, and Grayson object to the treaty-making power clause because 2/3 of a quorum of states rather than 2/3 of the whole Senate could “make treaties to bind the nation.”

Nicholas, Madison, and Randolph defend the treaty-making clause: were the President to agree to such an outcome, “he would be impeached and convicted, as a majority of the states would be affected by his misdemeanor.” And certainly, “neither the life nor property of any citizen, nor the particular right of any state, can be affected by a treaty.”

Grayson and Mason continue their objection to the treaty-making power: “The President and Senate can make any treaty whatsoever. We wish not to refuse, but to guard, this power, as it is done in England.”

Nicholas and Corbin defend the clause: “If there be any sound part in this Constitution, it is in this clause.”

Henry also objects to the clause: “I dread that our rights are about to be given away” for Congress can make any treaty. Impeachment is no protection. “It is a mere shama mere farce.””

Madison defends the clause: “the object of treaties is the regulation of intercourse with foreign nations, and is external.”

[According to the Convention Recorder, Mr. Madison added other remarks which could not be heard.]

Pendleton defends “the necessity of making a judiciary an essential part of the government.” And Congress has the ability to guide the conduct of the judiciary.

Mason objects: ” it appears to me that the greater part of these powers are unnecessary, and dangerous, as tending to impair, and ultimately destroy, the state judiciaries, and, by the same principle, the legislation of the state governments.” There is no limitation on the reach of the judiciary: “it goes to every thing.” He proposes an amendment “limiting the cases in which the federal judiciary could interpose to matters of law only.”

[According to the Convention Recorder: “Here Mr. Mason proposed an alteration nearly the same as the first part of the fourteenth amendment recommended by the Convention which see at the conclusion.]

(To assist the reader, however, I have reproduced the “Mason Proposal” located in what the Convention Recorder refers to as the Amendment Proposals near the end of Elliot’s Debates and inserted it here at this point in the proceedings since this is the day on which the alteration was read and discussed. I have also italicized the Proposal.)

“14th. That the judicial power of the United States shall be vested in one Supreme Court, and in such courts of admiralty as Congress may from time to time ordain and establish in any of the different states. The judicial power shall extend to all cases in law and equity arising under treaties made, or which shall be made, under the authority of the United States; to all cases affecting ambassadors, other foreign ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, and between parties claiming lands under the grants of different states. In all cases affecting ambassadors, other foreign ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction; in all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, as to matters of law only, except in cases of equity, and of admiralty, and maritime jurisdiction, in which the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make: but the judicial power of the United States shall extend to no case where the cause of action shall have originated before the ratification of the Constitution, except in disputes between states about their territory, disputes between persons claiming lands under, the grants of different states, and suits for debts due to the United States.

Madison returns to his defense of the judiciary article: “I think we shall find nothing dangerous or inadmissible in it.” It takes up 8 pages of Elliot’s Debates.

Madison continues: “I have observed that gentlemen suppose that the general legislature will do every thing mischievous they possibly can, and that they will omit to do every thing good which they are authorized to do. If this were a reasonable supposition, their objections would be good. I consider it reasonable to conclude that they will as readily do their duty as deviate from it; nor do I go on the grounds mentioned by gentlemen on the other sidethat we are to place unlimited confidence in them, and expect nothing but the most exalted integrity and sublime virtue. But I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks, no form of government, can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men; so that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.”

Henry‘s response occupies 8 pages of Elliot’s Debates. He objects to the absence of protection of trial by jury: ” It appears to me that the powers in the section before you are either impracticable, or, if reducible to practice, dangerous in the extreme . the state courts must soon be annihilated” He continues: “But on this occasion, as on all others, we are admonished to rely on the wisdom and virtue of our rulers. When deliberating on the relinquishment of the sword and purse, we have a right to some other reason than the possible virtue of our rulers.”

Pendleton response covers 5 pages of Elliot’s Notes: the trial by jury is secured in criminal trials. “Will not the American spirit protect us against any danger from our own representatives?”

Marshall, in a speech that covers 11 pages of Elliot’s Debates, defends the jurisdiction of the federal judiciary: “The principle on which they object to the federal jurisdiction seems, to me, to be founded on a belief that there will not be a fair trial had in those courts.” And, furthermore, “to what quarter will you look for protection from an infringement on the Constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection.” Finally, “the honorable member says that he derives no consolation from the wisdom and integrity of the legislature.”

Randolph “confessed some of the objections against the judiciary were merely chimerical; but some of them were real, which his intention of voting in favor of adoption would not prevent him from developing.”

Harrison reported, from the committee on privileges and elections, on “an undue election and return.”

Grayson‘s speech covers eight pages of Elliot’s Debates. “It seems,” says Grayson, “to have been a rule with the gentlemen on the other side to argue from the excellency of human nature, in order to induce us to grant away (if I may be allowed the expression) the rights and liberties of our country . With respect to the judiciary, my grand objection is, that it will interfere with the state judiciaries.” He continued: “My next objection to the federal judiciary is, that it is not expressed in a definite manner. The jurisdiction of all cases arising under the Constitution and the taws of the Union is of stupendous magnitude.”

Randolph outlines, in a speech which covers over ten pages in Elliot’s Debates, “in what cases the federal judiciary appears to me to deserve applause, and where it merits dispraise.” Among the latter, he notes that the judicial power “extends to all cases in law and equity arising under the Constitution. What are these cases of law and equity? . If my interpretation be right, the word arising will be carried so far that it will be made use of to aid and extend the federal jurisdiction.”

Randolph then invites the delegates to consider voting on ratification: “If it be not considered too early, as ratification has not yet been spoken of, I beg leave to speak of it. If I did believe, with the honorable gentleman, that all power not expressly retained was given up by the people, I would detest this government. But I never thought so, nor do I now. If, in the ratification, we put words to this purpose, “and that all authority not given is retained by the people, and may be resumed when perverted to their oppression; and that no right can be cancelled, abridged, or restrained, by the Congress, or any officer of the United States,”I say, if we do this, I conceive that, as this style of ratification would manifest the principles on which Virginia adopted it, we should be at liberty to consider as a violation of the Constitution every exercise of a power not expressly delegated therein. I see no objection to this. It is demonstrably clear to me that rights not given are retained, and that liberty of religion, and other rights, are secure. I hope this committee will not reject it for faults which can be corrected, when they see the consequent confusion that will follow.”

Henry objected to the amount of federal jurisdiction and to the lack of protection for trial by jury: ” He did not consider the objections answered in such a manner as gave satisfaction.”

Marshall: “(Mr. Henry) must have misunderstood him. He said that he conceived the trial by jury was as well secured, and not better secured, in the proposed new Constitution as in our bill of rights.”

Henry responds: “The whole history of human nature cannot produce a government like that before you. The manner in which the judiciary and other branches of the government are formed, seems to me calculated to lay prostrate the states, and the liberties of the people.” He continues: “It is with true concern, with grief, I tell you that I have waited with pain to come to this part of the plan; because I observed gentlemen admitted its being defective, and, I had my hopes, would have proposed amendments. But this part they have defended; and this convinces me of the necessity of obtaining amendments before it is adopted.”

Stephens: “the gentleman, sir, means to frighten us by his bugbears of hobgoblins.”

George Nicholas observed, that “the honorable gentleman (Mr. Henry) has objected to the whole; and that no part, if he had his way, would be agreed to.”

Henry: “if the gentleman means personal insinuations, or to wound my private reputation, I think this an improper place to do so.”

Nicholas: “I meant no personality in what I said, nor did I mean any resentment. If such conduct meets the contempt of that gentleman, I can only assure him it meets with an equal degree of contempt from me.”

[According to the Convention Recorder: "Mr. President observed, that he hoped gentlemen would not be personal; that they would proceed to investigate the subject calmly, and in a peaceable manner."]

Grayson “did not believe there existed a social compact upon the face of the earth so vague and so indefinite as the one now on the table.”

Henry “went into an explanation of the trial by jury, and the difference between the new plan and our bill of rights.”

Madison observed: “the declaration on that paper could not diminish the security of the people, unless a majority of their representatives should concur in a violation of their rights.”

Mason: “A poor man seized by the federal officers, and carried to the federal court,has he any chance under such a system as this? Justice itself may be bought too dear; yet this may be the case. It may cost a man five hundred pounds to recover one hundred pounds. These circumstances are too sacred to leave undefined; and I wish to see things certain, positive, and clear.”

Grayson thought: ” there never can be a southern state admitted into the Union. There are seven states, which are a majority, and whose interest it is to prevent it.”

Madison “thought this part of the plan more favorable to the Southern States than the present Confederation, as there was a greater chance of new states being admitted.”

Mason: “endeavored to demonstrate the dangers that must inevitably arise from the insecurity of our rights and privileges, as they depended on vague, indefinite, and ambiguous implications .He dreaded popular resistance to its operation.”

Lee (of Westmoreland) suggests that Mason has encouraged “the very means to bring into action the horrors which he deprecates. Such speeches within these walls, from a character so venerable and estimable, easily progress into overt acts, among the less thinking and the vicious.”

[The Convention Recorder concludes the proceedings thus: “The remainder of the Constitution was then read, and the several objectionable parts noticed by the opposition, particularly that which related to the mode pointed out by which amendments were to be obtained; and, after discussing it fully, the Convention then rose.”]

[The Convention Recorder: Wythe "spoke so very low that his speech could not be fully comprehended."]

Wythe: Although the Constitution was more perfect than the Articles, experience could guide us to yet further improvements. “It appeared to him, most clearly, that any amendments which might be thought necessary would be easily obtained after ratification, in the manner proposed by the Constitution, as amendments were desired by all the states, and had already been proposed by the several states. He then proposed that the committee should ratify the Constitution, and that whatsoever amendments might be deemed necessary should be recommended to the consideration of the Congress which should first assemble under the Constitution, to be acted upon according to the mode prescribed therein.”

[Convention Recorder notes: “The resolution of ratification proposed by Mr. Wythe was then read by the clerk; which see hereafter in the report of the committee to the Convention.”]

(To assist the reader, however, I have reproduced the Wythe Resolution located in the report of the committee to the Convention near the end of Elliot’s Debates and inserted it here at this point in the proceedings since this is the day on which the Resolution was read and discussed. I have also italicized the Resolution.)

“Whereas the powers granted under the proposed Constitution are the gift of the people, and every power not granted thereby remains with them, and at their will,no right, therefore, of any denomination, can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate or House of Representatives, acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and, among other essential rights, liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.”

Henry notes “the proposal of ratification is premature.” In a speech that covers ten pages of Elliot’s Debates, he points out that the Wythe proposal only covers the protection for “liberty of religion, liberty of the press, and the trial by jury.” What about “securing our personal rights?” What about protection from the “implied powers ” of Congress? Can’t Congress, for example abolish slavery in the name of the general welfare and thus place the “property of the people of Virginia in jeopardy? As much as I deplore slavery, I see that prudence forbids its abolition.” Why adopt a defective document? Previous amendments are better than subsequent amendments!

[The Convention Recorder notes: “Henry informed the committee that he had a resolution prepared, to refer a declaration of rights, with certain amendments to the most exceptional parts of the Constitution . The clerk then read the declaration of rights, and amendments which were nearly the same as those ultimately proposed by the Convention; which see at the conclusion.”]

(To assist the reader, however, I have moved the 20 Bill of Rights Proposals and the 20 Amendment Proposals from their actual location at the conclusion of Elliot’s Debates on June 27 and relocated them at this point in the proceedings since this is the day on which both Proposals were read and discussed. I have also italicized both Proposals.)

PROPOSED BILL OF RIGHTS

“That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following:-

“1st. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

“2d. That all power is naturally invested in, and consequently derived from, the people; that magistrates therefore are their trustees and agents, at all times amenable to them.

“3d. That government ought to be instituted for the common benefit, protection, and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind.

“4th. That no man or set of men are entitled to separate or exclusive public emoluments or privileges from the community, but in consideration of public services, which not being descendible, neither ought the offices of magistrate, legislator, or judge, or any other public office, to be hereditary.

“5th. That the legislative, executive, and judicial powers of government should be separate and distinct; and, that the members of the two first may be restrained from oppression by feeling and participating the public burdens, they should, at fixed periods, be reduced to a private station, return into the mass of the people, and the vacancies be supplied by certain and regular elections, in which all or any part of the former members to be eligible or ineligible, as the rules of the Constitution of government, and the laws, shall direct.

“6th. That the elections of representatives in the legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with, and attachment to, the community, ought to have the right of suffrage; and no aid, charge, tax, or fee, can be set, rated, or levied, upon the people without their own consent, or that of their representatives, so elected; nor can they be bound by any law to which they have not, in like manner, assented, for the public good.

“7th. That all power of suspending laws, or the execution of laws, by any authority, without the consent of the representatives of the people in the legislature, is injurious to their rights, and ought not to be exercised.

“8th. That, in all criminal and capital prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence, and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, (except in the government of the land and naval forces;) nor can he be compelled to give evidence against himself.

“9th. That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges, or franchises, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land.

“10th. That every freeman restrained of his liberty is entitled to a remedy, to inquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.

“11th. That, in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and to remain sacred and inviolable.

“12th. That every freeman ought to find a certain remedy, by recourse to the laws, for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely, without sale, completely and without denial, promptly and without delay; and that all establishments or regulations contravening these rights are oppressive and unjust.

“14th. That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, and property; all warrants, therefore, to search suspected places, or seize any freeman, his papers, or property, without information on oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend any suspected person, without specially naming or describing the place or person, are dangerous, and ought not to be granted.

“15th. That the people have a right peaceably to assemble together to

“16th, That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

“17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.

“18th. That no soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the law directs.

“19th. That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.

“20th. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established, by law, in preference to others.”

PROPOSED AMENDMENTS TO THE CONSTITUTION.

“1st. That each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government.

“2d. That there shall be one representative for every thirty thousand, according to the enumeration or census mentioned in the Constitution, until the whole number of representatives amounts to two hundred; after which, that number shall be continued or increased, as Congress shall direct, upon the principles fixed in the Constitution, by apportioning the representatives of each state to some greater number of people, from time to time, as population increases.

“3d. When the Congress shall lay direct taxes or excises, they shall immediately inform the executive power of each state, of the quota of such state, according to the census herein directed, which is proposed to be thereby raised; and if the legislature of any state shall pass a law which shall be effectual for raising such quota at the time required by Congress, the taxes and excises laid by Congress shall not be collected in such state.

“4th. That the members of the Senate and House of Representatives shall be ineligible to, and incapable of holding, any civil office under the authority of the United States, during the time for which they shall respectively be elected.

“5th. That the journals of the proceedings of the Senate and House of Representatives shall be published at least once in every year. except such parts thereof, relating to treaties, alliances, or military operations, as, in their judgment, require secrecy.

“6th. That a regular statement and account of the receipts and expenditures of public money shall be published at least once a year.

“7th. That no commercial treaty shall be ratified without the concurrence of two thirds of the whole number of the members of the Senate; and no treaty ceding, contracting, restraining, or suspending, the territorial rights or claims of the United States, or any of them, or their, or any of their rights or claims to fishing in the American seas, or navigating the American rivers, shall be made, but in cases of the most urgent and extreme necessity; nor shall any such treaty be ratified without the concurrence of three fourths of the whole number of the members of both houses respectively.

“8th. That no navigation law, or law regulating commerce, shall be passed without the consent of two thirds of the members present, in both houses.

“9th. That no standing army, or regular troops, shall be raised, or kept up, in time of peace, without the consent of two thirds of the members present, in both houses.

“10th. That no soldier shall be enlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war.

“11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service, in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments, as shall be directed or inflicted by the laws of its own state.

“12th. That the exclusive power of legislation given to Congress over the federal town and its adjacent district, and other places, purchased or to be purchased by Congress of any of the states, shall extend only to such regulations as respect the police and good government thereof.

“13th. That no person shall be capable of being President of the United States for more than eight years in any term of sixteen years.

“14th. That the judicial power of the United States shall be vested in one Supreme Court, and in such courts of admiralty as Congress may from time to time ordain and establish in any of the different states. The judicial power shall extend to all cases in law and equity arising under treaties made, or which shall be made, under the authority of the United States; to all cases affecting ambassadors, other foreign ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, and between parties claiming lands under the grants of different states. In all cases affecting ambassadors, other foreign ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction; in all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, as to matters of law only, except in cases of equity, and of admiralty, and maritime jurisdiction, in which the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make: but the judicial power of the United States shall extend to no case where the cause of action shall have originated before the ratification of the Constitution, except in disputes between states about their territory, disputes between persons claiming lands under, the grants of different states, and suits for debts due to the United States.

“15th, That, in criminal prosecutions, no man shall be restrained in the exercise of the usual and accustomed right of challenging or excepting to the jury.

“16th. That Congress shall not alter, modify, or interfere in the times, places, or manner of holding elections for senators and representatives, or either of them, except when the legislature of any state shall neglect, refuse, or be disabled, by invasion or rebellion, to prescribe the same.

“17th. That those clauses which declare that Congress shall not exercise certain powers, be not interpreted, in any manner whatsoever, to extend the powers of Congress; but that they be construed either as making exceptions to the specified powers where this shall be the case, or otherwise, as inserted merely for greater caution.

“18th. That the laws ascertaining the compensation of senators and representatives for their services, be postponed, in their operation, until after the election of representatives immediately Succeeding the passing thereof; that excepted which shall first be passed on the subject.

“19th. That some tribunal other than the Senate be provided for trying impeachments of senators.

“20th. That the salary of a judge shall not be increased or diminished during his continuance in office, otherwise than by general regulations of salary, which may take place on a revision of the subject at stated periods of not less than seven years, to commence from the time such salaries shall be first ascertained by Congress.”

Henry concludes by reminding the delegates that what the citizens in Virginia want is to “be able to sit down in peace and security under their own fig-trees.”

Randolph states that “nothing but the fear of inevitable destruction would lead me to vote for the Constitution in spite of the objections to it.” He suggests that Henry is advocating that Virginia secede if the Constitution is adopted without “previous amendments.”

[Convention Recorder notes: “Henry denied having said anything of secession, but that he said, he would have no hand in subsequent amendments; that he would remain and vote, and afterwards he would have no business here.”]

Randolph: isn’t it a secession from the principles of republican government, and “good citizenship” when a minority refuses to “submit to the decision of the majority?” And he asks: where in Wythe’s propositions, “do you discover that the people of Virginia are tenacious of three rights only?” Randolph then turns to Henry’s claim that under the Constitution, Congress can abolish “the existing state of slavery.” Where does Henry find this? The general welfare clause does not contain “a general, indefinite power” to do whatever it wants.

Randolph turned to “some of the amendments proposed by the honorable gentleman.” He is particularly concerned with the 7th amendment: I appeal to my colleagues at the federal convention, whether this was not the sine qua non of the Union. Of all the amendments, this is the most destructive.” But he is more interested in what the doctrine of “previous amendments” means. Is Virginia about “to make this the condition of our coming into this government?”

Mason: the commerce and navigation clause “never was a sine qua non of the Union.” There was a deal at the Convention: the southern states gave up their attachment to a 2/3 vote requirement with respect to commerce and navigation in exchange for “the temporary importation of slaves.”

Dawson, who describes himself as “a young politician,” and in a speech that covers eight pages of Elliot’s Debates, believes the new Constitution will endanger the Union: “the liberties of America in general, the property of Virginia in particular, would be endangered.” He then states “my great objection”: there is no genuine separation of powers. He opposes the treaty clause, and the declare war clause, etc. “I shall decidedly give my vote in favor of previous amendments.”

Grayson claims that “gentlemen have misrepresented what I said on the subject of treaties.” Most importantly, the Union needs Virginia more than Virginia needs the Union, and thus we Virginians can command “previous amendments.” Were it not for “one great character in America, so many men would not be for this government.”

Madison: “nothing has excited more admiration in the world than the manner in which free governments have been established in America; for it was the first instance, from the creation of the world to the American revolution, that free inhabitants have been seen deliberating on a form of government, and selecting such of their citizens as possessed their confidence, to determine upon and give effect to it.” Defects in “the general system” exist because “mutual deference and concession were absolutely necessary,” but the defects will be removed “when experience will show it to be necessary.” It is imprudent for Virginia, and contrary to the happiness of America, to insist on previous amendments “They are pregnant with dreadful dangers” and will throw the entire ratification process into turmoil. He then criticizes Henry’s amendment proposals, especially those that challenged the doctrine of majority rule: “This policy of guarding against political inconveniences, by enabling a small part of the community to oppose the government, and subjecting the majority to a small minority, is fallacious.”

Henry repeated his fear of the inappropriate use of Congressional “implied powers” during his response to the remarks by Randolph and Madison. “We have it in our power to secure the happiness of half the human race. Its adoption may involve the misery of the other hemisphere.”

[According to the Convention Recorder: “Here a violent storm arose, which put the house in such disorder, that Mr. Henry was obliged to conclude.”]

Nicholas contended that the language of the proposed ratification “would secure every thing which gentlemen desired, as it declared that all powers vested in the Constitution were derived from the people, and might be resumed by them whensoever they should be perverted to their injury and oppression; and that every power not granted thereby remained at their will.”

Madison “conceived that what defects might be in the Constitution might be removed by the amendatory mode in itself. As to a solemn declaration of our essential rights, he thought it unnecessary and dangerousunnecessary, because it was evident that the general government had no power but what was given it, and that the delegation alone warranted the exercise of power; dangerous, because an enumeration which is not complete is not safe . He declared that such amendments as seemed, in his judgment, to be without danger, he would readily admit, and that he would be the last to oppose any such amendment as would give satisfaction to any gentleman, unless it were dangerous.”

Nicholas proposes ratification with subsequent amendments for Congress to consider.

The clerk then read both the Wythe resolution and the amendments and bill of rights proposed by Henry.

Harrison reminds the delegates that “there are seven states that want amendments.”

Madison believes that previous amendments will send a confused message to the states that have already ratified and cause “unnecessary delays.” Amendments should be made through the process defined in the Constitution.

Monroe and Tyler considered it to be more prudent to secure previous (and binding) amendments than subsequent (and recommendatory) amendments. Innes, Stephen, and Zachariah Taylor urge the Convention to support subsequent amendments.

Henry: “the proposition of subsequent amendments is only to lull our apprehensions.”

Randolph has the last parting word: he still has objections but “the accession of eight states reduced our deliberations to the single question of Union or no Union.” the Constitution for the preservation of the Union

The clerk then read the revision of Wythe’s earlier resolution that a committee had drafted:

“Whereas the powers granted under the proposed Constitution are the gift of the people, and every power not granted thereby remains with them, and at their will,no right, therefore, of any denomination, can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate or House of Representatives, acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and, among other essential rights, liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.

“And whereas any imperfections, which may exist in the said Constitution, ought rather to be examined in the mode prescribed therein for obtaining amendments, than by a delay, with a hope of obtaining previous amendments, to bring the Union into danger,

“Resolved, That it is the opinion of this committee, that the said Constitution be ratified. But in order to relieve the apprehensions of those who may be solicitous for amendments,

“Resolved, That it is the opinion of this committee, that whatsoever amendments may be deemed necessary, be recommended to the consideration of the Congress which shall first assemble under the said Constitution, to be acted upon according to the mode prescribed in the 5th article thereof.”

The 1st resolution being read a second time, a motion was made, and the question being put, to amend the same by substituting, in lieu of the said resolution and its preamble, the following resolution,

“Resolved, That, previous to the ratification of the new Constitution of government recommended by the late federal Convention, a declaration of rights, asserting, and securing from encroachment, the great principles of civil and religious liberty, and the unalienable rights of the people, together with amendments to the most exceptionable parts of the said Constitution of government, ought to be referred by this Convention to the other states in the American confederacy for their consideration.”

The delegates then turned to the main question: shall the Convention agree to the first resolution in favor of ratification and the recommendation of subsequent amendments? It passed in the affirmative, ayes, 89; noes, 79.

A committee, chaired by Wythe, was chosen to prepare a Bill of Rights Proposal and a Subsequent Amendments Proposal.

Wythe presents 20 Bill of Rights Proposals and 20 Amendment Proposals which were agreed upon and, along with the ratification, transmitted to the First Congress for consideration as subsequent amendments.